Mahesh Kumar vs. Dhuria & Company and anr.
Dated : 12.08.2024.
Present: Sh. Neeraj Mehta, Advocate for complainant.
Sh. A.S. Kalra, Advocate for op no.2.
OP no.1 already exparte.
Reply to the application filed on behalf of complainant. Heard on the application dated 10.07.2024 moved on behalf of op no.2 for dismissal of complaint qua the applicant company being devoid of any cause of action or locus standi against op no.2. It is submitted that complaint is bad for mis joinder. The complainant has alleged that there has been issue in the alleged free running apps i.e. OTT apps such as Disney hotstar and Netflix etc., but no proof of any free running of these alleged apps is annexed by the complainant and without any cause of action and with only balled allegations present complaint has been filed. In fact, the answering op ha snever issued any free subscription of third party applications as mentioned in the complaint. It is further submitted that op no.2 is a separate legal entity and the alleged applications i.e. Disney Hotstar and Netflix etc. are separate legal entities and run their applications on the basis of subscriptions issued by them and there is no role of Samsung India to provide free subscriptions of these alleged applications. It is further submitted that op no.2 is manufacturer of electronic devices and not any entertainment provider company such as Disney Hotstar and Netflix etc. and it has neither issued any free subscription of these third party applications nor has any role in the alleged stoppage of these alleged free running of applications. The complainant has not arrayed the said entities of entertainment applications of Disney Hotstar and Netflix and without any rhyme and reason filed the present complaint against the Samsung India which is only the manufacturer of the electronic products. It is further submitted that op no.2 has been approached by complainant with regard to alleged stoppage of running of these third party applications and it has been replied to the concern of the complainant that these services are issued by the third parties/ service providers and Samsung India has no role to stop or run these third party applications and complainant himself admitted these averments of op no.2 in his complaint and as such present complaint is not maintainable against op no.2 being devoid of any cause of action and present complaint is not maintainable and complainant is not a consumer. It is further submitted that there is no proof of purchase i.e. invoice in the name of complainant is received to the op no.2. There is no direct or indirect role of op no.2 with regard to issuing of said alleged free subscriptions of third party applications. The liability of the op no.2 is only limited to the working and functioning of the product in question and there are no such allegations in the whole complaint qua the working of the unit, which are evident of the fact that there is no complaint against the manufacturer Samsung India and whole complaint is only against said third party applications. It is further submitted that present complaint is not maintainable being out of limitation period to file a complaint because as per Section 69 of the Consumer Protection Act, 2019 any complaint can only be filed by complainant within the period of two years from the date of cause of action but in the present complaint, the unit in question is allegedly purchased on 17.01.2017 and there is no complaint qua working or performance of the unit in question since 2017 and as such prayer for dismissal of complaint made.
2. In the reply filed by complainant, it is submitted that all the necessary parties have been impleaded. The op no.2 had given assurance of not to stop any facility like Hotstar, Prime Video, Netflix, Jio Cinema, Sony Liv etc. on the above said LED and assured not to stop any of said facility in future in the above said LED purchased by complainant from op no.1. No proof of any type of service was given by ops to the complainant at the time of purchase. The op no.2 might be having its separate business but the LED in question was manufactured by op no.2 which was sold by op no.1. It is further submitted that invoice was taken away by the installing person at the time of installation of LED and its duplicate copy can be obtained by op no.2 from op no.1 who is their agent/ dealer and maintains complete record. When the LED is under warranty, the ops/ OTT apps are bound to provide necessary services to him. It is further submitted that intentions of the ops is to force the complainant to purchase new LED to enjoy OTT apps as in the new LED these OTT apps are working properly. The complainant has arrayed the dealer and manufacturer as ops no.1 and 2, so their liability is joint and several till the expiry of the warranty period and they are bound to provide free third party application till expiry of warranty period and there is no need to implead the others as ops who have no concern with the product in question. The problem started in the month of January, 2024 and complainant filed present complaint on 23.05.2024 which is very much within limitation and is maintainable. It is further submitted that ops in reply to the email sent by complainant clearly admitted that this service has been discontinued by the service provider due to their technical limitations, however, he can use alternative method to access the desired apps. So, it is clear that contract between Samsung Company and Hot Star Disney has been expired and they have failed to extend the contract. The complainant has paid excess payment of the LED to enjoy such OTT apps for future/ life time and withdrawal of such OTT apps without giving any notice or opportunity clearly amounts to deficiency in service on the part of ops and prayer for dismissal of application made.
3. We have heard learned counsel for the parties. The complainant has filed the present complaint with the allegations that complainant had purchased a Samsung LED 43 inches on 13.01.2017 from op no.1 and ops provided several OTT apps like Hotstar, Prime Video, Netflix Jio Cinema, Sony Liv etc. on the above said LED and assured not to stop any said facility in future in the above said LED but now in the month of January, 2024 onwards the Hotstar is not working on the above said LED and when the complainant called on toll free number, it was told that now in this model Hotstar has been removed. He has further alleged that token number for installation of the LED in question is 4229085800 and the original bill in question was deposited with the engineer/ mechanic who installed the LED. The complainant had purchased Smart LED and paid a sum of Rs.50,000/- to the ops i.e. excess payment for enjoying the several above said OTT apps and now ops have stopped the Hotstar app which is deficiency in service and unfair trade practice on the part of ops. However, the above said allegations of complainant are not supported by any substantial material and without any proof/ document, it cannot be said that said apps were provided in the LED in question for life time. The complainant purchased in the LED in question in the year 2017 and has used the same for more than seven years and has not alleged any defect qua its working for which only ops no.1 and 2 being dealer and manufacturer were responsible and facility of above said apps were being provided in the LED by the third party and as such ops no.1 and 2 cannot be held liable for stoppage of Hotstar app in the LED whereas the separate entity for providing such apps has not been arrayed as op in the present complaint. As such application moved on behalf of op no.2 is allowed and resultantly present complaint is dismissed being devoid of any cause of action and being not maintainable. File be consigned to the record room.
Member President DCDRC, Sirsa.
